9298

• UCREFRP Catalog Number: 9298
• Author: Water Education Foundation.
• Title: Colorado River Project
• USFW Year: 1999.
• USFW - Doc Type: Symposium Proceedings.
• Copyright Material: NO

THE EVER
EVOLVING
LAW OF
THE RIVER

Salinity Control Act. By default under the Clean
Water Act, the Secretary plays a significant role there.
There already is, if you put it all in one basket,
incredible power in the Secretary. It was my sugges-
tion a couple of years ago - and I think I'd still
suggest it - that the Secretary try to facilitate the
delegation of as much of this authority as possible to,
not only to the states, but to a group that includes
multiple interests.
I know that sends chills up the spines of states who
don't want to share authority delegated from the
Secretary with environmentalists, Indian tribes and
others, but the states have very little formal clout.
Under the Law of
the River, the
Boulder Canyon
Project Act says that
the Secretary shall
send a copy of the
long range operating
criteria to the seven
stat.e governors and
such other parties
and entities that he
deems appropriate.
That's it. Can you
believe a statute
being written today with so little consultation? If the
Secretary pulled back to the minimum that he had to
do, this broader representation at the table would
sound pretty good if the Secretary really did delegate
decision making to it.

The Lower Basin is

still an anomaly in the
West. There's nothing

SYMPOSIUM
PROCEEDINGS
SEPTEMBER 1999

~

like it with respect to

federal primacy.

- Gary Weatherford

QUESTION FROM THE AUDIENCE: It would

appear rhat the Colorado River Compact is a
beneficial consumptive use agreement and that the
Upper Basin states don't operate on the same alloca-
tion principle that the Secretary may be able to do in
the Lower Basin. Now, my question is this: the
allocations that the states have to develop are spoken
for through adjudication, as you know. The change of
water rights law that is applicable in states that
adjudicate changes to allow markets to take place, I
believe, follow a theory of beneficial historic con-
sumptive use.
What I heard from the panel has to do with
treating surpluses that are not beneficially used within
a state as somehow marketable. My question is, how
will the courts be able to handle their own priorities
within their state? There are principles of historical
consumptive use guiding a change of water right, and
then take into account some suggestions I heard
about marketing. Can we get some thoughts on that?

WEATHERFORD: You've highlighted the fact that
the Law of the River straddles strong traditions of
both state primacy, which continues to pertain in the
Upper Basin and federal primacy, which became
established largely through the Lower Canyon Project
Act when Arizona beat California. I don't think that
the Secretary's discretion, which we've been focusing
upon, in the context of the Lower Basin, is the same
in the Upper Basin at all with respect to issues of
unused apportionment and surplus. State appropria-
tive laws still pertain in terms of the distribution of
the Upper Basin's share.
I think we're at a crossroads where that tension
between state and federal law exists. Notwithstanding
the Endangered Species Act, which is a strong
instance of federal preemption, I think there's still a
lot of life in state sovereignty and that one of the
things we need to more consciously deal with is this
theme. In respect to addressing these problems of the
future, are we just going to drift and have a series of
ad hoc decisions at the state and federal level? Or are
we going to have a more coordinated effort that has a
more rational resolution with respect to this tension
between federal and state power?
The Lower Basin is still an anomaly in the West.
It's a clear anomaly; there's nothing like it with
respect to federal primacy. It's true that westwide, the
ESA has become a major factor. As tothe federal-
state tension that still exists, I don't think we've
passed the point where it's too late for a different fork
in the road to be selected.

GETCHES: I agree. The Lower Basin, subject to the
decree in Arizona v. California, is in a very different
situation. That decree said that control of the
apportionment of water among the states is subject to
the Boulder Canyon Project Acr and the Secretary's
contracts, not the law of prior appropriation. We
don't have anything like that in the Upper Basin. In
the Upper Basin, appropriation for use in or out of
the state is going to be determined by the state law of
prior appropriation. That means that it's the state's
definition of beneficial use. It's the state's definition
of public interest or public welfare. It's the state's
statutory scheme for export. In this realm, allocating
a compact apportionment, there's a greater latitude
for a state to control exports rhrough even-handed
types of limitations and restrictions.

Muys: The proposal that Clyde Martz opined on
would have been within the context of state law. The
water that would have been transferred to the Lower
Basin would have been water that either had been put